This PatSnap Master Agreement (this “Agreement”) is made by and between Patsnap (UK) Ltd, on behalf of itself and its Affiliates, an entity incorporated in the United Kingdom having offices at WeWork, 6th Floor (Alto), 30 Stamford Street, London, United Kingdom, SE1 9LQ (“PatSnap”), and PatSnap’s customer (“Customer”). Hereinafter, PatSnap and Customer shall be referred to separately as a “Party” and collectively as the “Parties”. This Agreement shall become effective upon the date of execution of the Party to sign PatSnap’s underlying documentation last (the “Effective Date”). This Agreement, together with all Order Confirmation Forms and SOWs, sets forth the terms under which PatSnap will license software to and/or perform services for Customer as described herein. In consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Certain capitalized terms used in this Agreement shall have the meaning assigned to them as set forth herein.
1.1 “Affiliate” means, with respect to the applicable Party, any entity that is controlled by such Party, which is set out in an Order Confirmation Form, and in the case of PatSnap, shall include those entities under common control with the entity set out in the Order Confirmation Form. “Control,” for purposes of this definition, means direct ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “Authorized Users” means individuals who are authorized by Customer to use the Subscription Services, for whom a subscription to the Subscription Services has been procured (up to the agreed number set out in an Order Confirmation Form), and who at all times shall be Customer’s employees, officers, consultants, authorized contractors with which Customer does business or, where applicable, employees, officers, consultants, or authorized contractors of a Customer Affiliate.
1.3 “Confidential Information” means all non-public information disclosed by a Party to the other Party on or before the Effective Date and thereafter which is of a confidential nature or which should reasonably in good faith be treated as confidential or proprietary based on the nature of the information or the circumstance surrounding its disclosure. Without limiting the generality of the foregoing, the term “Confidential Information” shall include, but not be limited to, documents, products, information, scientific or computer data, software, technical methods or activities of the applicable Party and its commercial partners and customers and their Affiliates, existing or future products, manufacturing processes, know-how and technology, information on commercial, advertising and promotional methods. Customer Data shall be considered Confidential Information of Customer. Confidential Information does not include information which is: (i) generally known or publicly available, or which, hereafter through no act or failure to act on the part of recipient, becomes generally known or available; (ii) rightfully known to recipient at the time of receiving such information; (iii) furnished to recipient by a third party without restriction on disclosure; or (iv) independently developed by recipient without having relied on the Confidential Information of the disclosing Party.
1.4 “Connect Services” means PatSnap’s services relating to Customer’s access to PatSnap’s application programming interface (the “API”) that allows other software or hardware devices to interface with PatSnap’s platform (which means the PatSnap software applications and any other online products or services provided by PatSnap to its users via the API). The API also includes any accompanying documentation and any updates to the API made available by PatSnap in its sole discretion from time to time (PatSnap’s Connect Services and API description may be found at: PatSnap API Product Specific Terms (PDF).
1.5 “Customer Data” means all electronic data submitted on behalf of Customer into and for use in the Software, Services, or Professional Services. The term “Customer Data” shall exclude any publicly available information.
1.6 “Data Processing Agreement” means the data processing agreement which governs any applicable processing of the personal data of individuals within the EEA undertaken by PatSnap on behalf of Customer. If and only to the extent that PatSnap engages in processing personal data of EEA residents as a result of or in connection with providing the Software or Services to Customer, or it is otherwise required by applicable law, the terms of the Data Processing Agreement shall apply and shall be incorporated into and form part of the terms of this Agreement between the Customer and PatSnap. The terms of the Data Processing Agreement may be found at: PatSnap Data Processing Agreement (PDF).
1.7 “Documentation” means the generally available end user documentation provided by PatSnap with the Software.
1.8 “Error” means a reproducible failure of the unmodified Software to conform to the specifications set forth in the Documentation, resulting in the inability to use, or material restriction in the use of, the Software.
1.9 “Fees” means, collectively, the fees charged by PatSnap for the Services as set forth in the applicable Order Confirmation Form and/or SOW.
1.10 “Free Access Services” means any PatSnap product or service or functionality thereof, or certain Professional Services, that may be made available by PatSnap to Customer to try at Customer’s option, at no additional charge, and which is clearly designated as “beta,” “trial,” “non-GA (generally available),” “pilot,” “developer preview,” “non-production,” “free trial,” “evaluation,” or by a similar designation.
1.11 “Initial Subscription Term” is defined in the applicable Order Confirmation Form.
1.12 “Intellectual Property Rights” means any and all intellectual property rights, including registered or unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patents, utility models, rights in designs, copyrights, moral rights, topography rights, database rights, trade secrets, trademarks, service marks, trade names, domain name rights, know-how, rights of confidence, or other intellectual property rights, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world from time to time.
1.13 “Order Confirmation Form” means an order form that describes the Software licensed to Customer, and the Services purchased by Customer, and incorporates the terms of this Agreement between the Customer and PatSnap.
1.14 “Professional Services” means the services offered by PatSnap and purchased by Customer as selected and described in the applicable Order Confirmation Form or SOW, including platform services, training services, search services, and/or research services, in each case as are described more fully in the applicable SOW or Order Confirmation Form. Without limiting the generality of the foregoing, training services are ad hoc services which are provided by PatSnap on an hourly basis, and platform services, search services and research services are services for which PatSnap conducts specific research in accordance with Customer requirements, as set out in the applicable Order Confirmation Form or SOW, as applicable.
1.15 “Service Specifications” means the descriptions of the Services set forth in the applicable Order Confirmation Form, SOW and any other PatSnap documents that are referenced in or incorporated into the applicable Order Confirmation Form, SOW or this Agreement relating to the Services.
1.16 “Services” means the services offered by PatSnap and purchased by Customer as selected and described in the applicable Order Confirmation Form or SOW, as applicable, including, but not limited to, Professional Services, Free Access Services, Subscription Services, and Connect Services.
1.17 “Services Data” means all research, findings, and/or reports created in and/or downloaded from the Software by Customer.
1.18 “Software” means the executable code of the software program(s) made available to Customer by PatSnap in connection with the Services, as specified on an Order Confirmation Form, including the Documentation delivered to Customer hereunder.
1.19 “SOW” means a Statement of Work that incorporates the terms of this Agreement between Customer and PatSnap.
1.20 “Subscription Services” means the subscription service(s) offered by PatSnap and purchased by Customer as selected and described in the applicable Order Confirmation Form. For avoidance of doubt, Subscription Services excludes Professional Services, Free Access Services and Connect Services.
1.21 “Transaction” means a single line item from an invoice or negotiated deal.
2. ORDER CONFIRMATION FORMS & SOWS.
2.1 Pursuant to this Agreement, Customer may order from PatSnap: (i) a license to access and use the Software and/or (ii) the performance of the Services. The specifications of each will be set forth on one or more Order Confirmation Forms or SOWs. Customer’s execution of an Order Confirmation Form or SOW constitutes a binding commitment to license the Software and/or Services described on such Order Confirmation Form or SOW under the terms and conditions of this Agreement. Unless stated otherwise in an applicable Order Confirmation Form or SOW, the terms of an Order Confirmation Form or SOW will have precedence over any conflicting terms in this Agreement, but only with respect to the subject matter of such Order Confirmation Form or SOW.
2.2 Professional Services. Customer and PatSnap may enter into one or more SOWs that describe the Professional Services purchased by Customer and to be performed by PatSnap. PatSnap is not responsible for any delay in, or failure to provide, the Professional Services to the extent caused by Customer or third parties other than PatSnap’s agents and contractors. If applicable, while providing Professional Services onsite at a Customer premises, PatSnap personnel will comply with reasonable Customer rules and regulations regarding safety and conduct which have been made known in writing in advance to PatSnap.
3. SOFTWARE LICENSE AND RESTRICTIONS; SERVICES RESTRICTIONS.
Customer may license Software from PatSnap by entering into one or more Order Confirmation Forms with PatSnap specifying such Software.
3.1 Software License. Subject to the terms of this Agreement and the applicable Order Confirmation Form, PatSnap grants to Customer, during the applicable Subscription Term, a limited, world-wide, non-exclusive, non-sublicensable and non-transferable license to permit Customer to use the Software in accordance with the Documentation, subject to the limitations set forth in the Order Confirmation Form.
3.2 Software Restrictions. Except as expressly set forth in this Agreement, the applicable Order Confirmation Form or the applicable SOW, Customer shall not, directly or indirectly: (a) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage in the Software or any modified version or derivative work created by or for Customer; (b) allow access or use of the Software or any modified version or derivative work created by or for Customer other than its Users or in excess of any restriction on the number of Users of licenses; (c) provide the Software on a timesharing, service bureau, service provider or other similar basis; (d) remove or alter any copyright, trademark or proprietary notice in the Software or Documentation; (e) incorporate or merge the Software into another software product, or otherwise access the Software to create, modify or enhance any software or competing service; (f) disassemble, decompile or reverse engineer or otherwise attempt to derive the structure, sequence or organization of source code, except as permitted by applicable law to achieve interoperability; (g) modify, adapt, recast, transform or otherwise prepare a derivative work of the Software or Documentation or portion thereof; (h) use the Software to store or transmit or authorize a third party to store or transmit infringing, libelous or otherwise unlawful, illegal or tortious material; (i) use or access the Software in breach of applicable laws, rules or regulations; (j) otherwise use or access the Software in breach of the terms and conditions of this Agreement or the Documentation; (k) copy any features, functions, or graphics of the Software for any purpose other than what is expressly authorized in this Agreement; (l) use the Software, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for external publication without PatSnap’s prior written consent; (m) otherwise use or copy the Software or Documentation or permit any third party to do any of the foregoing; (n) intentionally interfere with or disrupt the integrity or performance of the Software or the data contained therein; or (o) disclose the results of any benchmark, performance tests, or results of the Software. Customer shall: (i) be solely responsible for all Users’ compliance with the terms and conditions of this Agreement; (ii) be solely responsible for the accuracy, use, integrity, and legality of any information processed within the Software and the means by which Customer acquires and uses such information; (iii) use the Software only in accordance with the applicable user guide and applicable laws, rules, regulations (including, without limitation, export, data protection and privacy laws, rules and regulations) and any Software documentation; (iv) prevent unauthorized access to or use of the Software; and (v) notify PatSnap promptly of (1) any unauthorized use of, or access to, the Software of which it becomes aware, or (2) any notice or charge of noncompliance with any applicable law, rule or regulation asserted or filed against Customer in connection with Customer’s information stored or used on the Software. To the extent that Customer collects, processes or uses personal data itself or through the Software, Customer represents and warrants that it has a valid legal basis for doing so under the applicable provisions of data privacy law. Any such personal data processing relating to individuals within the EEA shall be governed by the Data Processing Agreement which is incorporated into and forms part of this Agreement. Customer agrees to indemnify PatSnap against any damages or claims incurred by PatSnap or its Affiliates in connection with a third-party claim arising out of Customer’s breach of this Section 3.2.
3.3 Software Access Rights. Each Authorized User shall be a named individual with a unique email address. Customer shall ensure that an Authorized User’s log-in credentials for the Software and/or the Services are not shared with any third party, including any of Customer’s other employees, officers, consultants, authorized contractors with which Customer does business or, where applicable, employees, officers, consultants, or authorized contractors of a Customer Affiliate. Customer shall be responsible for: (a) ensuring the security and confidentiality of all such access credentials; (b) all liabilities incurred through use of the Services under such log-in credentials; and (c) ensuring that each Authorized User complies with the Software and Services restrictions set forth in this Agreement.
3.4 Services Restrictions. Except as expressly set forth in this Agreement, the applicable Order Confirmation Form or the applicable SOW, Customer shall not, directly or indirectly: (a) resell any of the Services; (b) permit any third parties to use the Services for their own purposes; (c) use the Services on behalf of any third party; (d) use the Services in any manner that interferes with, degrades, or disrupts the integrity or performance of any of PatSnap’s technologies, services, systems or offerings; (e) attempt to gain unauthorized access to the Services or its related systems or networks; (f) breach any security feature readily apparent in the Services; (g) otherwise use the Services in breach of the terms and conditions of this Agreement or permit any third party to do any of the foregoing; or (h) disclose the results of any benchmark, performance tests, or results of the Services. Customer acknowledges that in order to use certain of the Services to be provided by PatSnap hereunder, Customer must provide all necessary third-party software (e.g. operating system and web browser). PatSnap is not responsible for providing any such third-party software, unless otherwise provided in this Agreement or any Order Confirmation Form.
3.5 Service Requirements. Customer agrees that its participation is critical for the success of the Services. Customer will provide all necessary resources and information required for PatSnap to perform the Services. Customer will ensure its personnel and resources will be available in a timely manner and will use commercially reasonable efforts to have its third-party provider’s personnel and resources, if applicable, available in a timely manner. For all on-site activities, to the extent applicable, Customer will provide suitable working space and necessary utilities. PatSnap may rely upon any instructions, authorizations, approvals or other information provided by Customer or its third-party provider, if applicable. PatSnap will be excused from performance of its obligations and the Services to the extent that such failure is attributable to Customer’s failure to provide such timely resources, access and information. Customer’s time for completion of tasks and approvals and Customer resource availability may result in changes to the Services, schedule and fees.
4. FEES AND PAYMENTS.
4.1 Fees; Payment. In consideration for the Software and/or Services licensed and/or provided by PatSnap under this Agreement pursuant to one or more Order Confirmation Forms or SOWs, Customer agrees to pay PatSnap the Fees as set forth on the applicable Order Confirmation Forms and/or SOWs. Except as otherwise provided in the Order Confirmation Form, Fees are: (a) invoiced upon the effective date of the Order Confirmation Form or SOW; (b) due within thirty (30) days from the date of PatSnap’s invoice; (c) due on the first day of the Renewal Term with respect to renewal Fees; (d) based upon and limited by the metrics set forth in the Order Confirmation Form or SOW; (e) non-refundable and non-creditable, except as set forth in Section 7.1 and Section 8.1 of this Agreement; (f) in the currency set forth in the applicable Order Confirmation Form or SOW; and (g) exclusive of all taxes (for which Customer shall be responsible, except for taxes on PatSnap’s net income). Customer agrees to provide PatSnap with complete and accurate billing and contact information. A service charge of 1.0% per month or the highest interest rate permitted by law, whichever is lower, shall be applied to all amounts which are not paid when due under this Agreement, accruing from the due date. Customer shall not withhold or offset Fees due to PatSnap for any reason. PatSnap will invoice and Customer will make payments for the Fees as set forth in the applicable Order Confirmation Form or SOW. Should PatSnap be required to use a collection agency or other means to collect payment due under this Agreement, Customer agrees to pay reasonable collection agency fees and reasonable attorney’s fees associated with such collection. Furthermore, if Customer requires PatSnap to use any service (including an online platform) in order to submit invoices or process payments made between Customer and PatSnap, PatSnap reserves the right to charge the Customer for, and Customer agrees to pay, the costs and expenses (if any) incurred by PatSnap or its Affiliates in registering for, accessing, or using such service.
4.2 Fees on Renewal. Unless otherwise set forth on an Order Confirmation Form, at the end of the Initial Subscription Term and each subsequent Renewal Term, the Software subscription will automatically renew in accordance with Section 6. PatSnap reserves the right to modify the Fees in connection with any Renewal Term.
4.3 Audit Rights. PatSnap shall have the right, at its expense, to audit, or have an independent, certified public accountant reasonably acceptable to Customer audit, Customer’s records and books of accounts related to the Services for the sole purpose of verifying compliance with the terms of this Agreement; provided, that: (a) Customer is provided at least ten (10) business days advance written notice of PatSnap’s intention to audit; and (b) the audit is conducted during normal business hours.
5. PROPRIETARY RIGHTS.
5.1 PatSnap Intellectual Property. PatSnap exclusively retains and will continue to exclusively retain all right, title and interest, including all related Intellectual Property Rights and all derivative works, in and to the Software, Services and Services Data, whether in machine-readable (source, object code or other format), printed or other form, including without limitation, any and all performance data, usage data, machine learning, anonymized metadata, and anything developed or delivered by or on behalf of PatSnap under this Agreement. If Customer purchases Professional Services from PatSnap under an applicable Order Confirmation Form or SOW, PatSnap grants Customer a worldwide, non-exclusive, non- sublicensable, non-transferable, revocable license to use the Professional Services in accordance with the applicable Order Confirmation Form or SOW. All rights not expressly granted to Customer in this Agreement with respect to the Software, Services, or Professional Services are reserved by PatSnap.
5.2 Suggestions; Customer Data Results. Customer is not obligated to provide PatSnap with any suggestions, enhancements, recommendations or other feedback relating to any software or services provided or offered by PatSnap (“Suggestions”). Customer hereby grants to PatSnap a royalty-free, fully-paid up, worldwide, transferable, sublicensable, irrevocable, perpetual right and license to use, copy, modify and distribute, including by incorporating into any software or services owned, licensed or provided by PatSnap, all Customer Data Results (as defined herein) in anonymized and aggregated format and all Suggestions.
5.3 Customer Intellectual Property. Customer exclusively retains and will continue to exclusively retain all right, title and interest in and to all Intellectual Property Rights embodied in or associated with Customer’s Confidential Information and to any results generated by Customer using the Software and the Services (“Customer Data Results”) to the extent such Customer Data Results do not constitute Services Data, subject to the provisions of this Section 5.
5.4 Customer Data. As between PatSnap and Customer, Customer retains all right, title and interest in and to all Customer Data. Customer is responsible for the accuracy and legality of Customer Data, and the means by which Customer acquired Customer Data. Customer represents and warrants that Customer is duly authorized and licensed to submit the Customer Data to PatSnap pursuant to the terms of this Agreement. Customer will indemnify and hold PatSnap harmless from damages or losses resulting from any claims brought by third parties against PatSnap alleging that Customer Data infringes any intellectual property rights of any third party. PatSnap reserves the right to refuse to process and/or remove any Customer Data if, in PatSnap’s determination, such Customer Data does not comply with the terms of this Agreement, the terms of any Order Confirmation Form and/or SOW, or any applicable law, or upon the reasonable request of any third party.
5.5 Use of Services Data. Notwithstanding anything to the contrary set forth herein, Customer and its Users may: (a) access and use Services Data in hard copy, electronic data storage or other electronic form and regardless of the means of access or delivery; (b) download, print and/or store copies of the Services Data; (c) use extracts in presentations, speeches or marketing material or other documentation, provided always that PatSnap’s copyright notice, trade name(s), trademark(s) and other intellectual property rights shall be displayed prominently in such distribution of the Services Data; and (d) use the Services Data for internal business purposes, which shall include distribution to Customer’s employees and officers.
5.6 Usage Data. PatSnap owns the statistical usage data derived from the operation of the Software, including activity data of Customer and its Users, and the performance results for the Software (collectively, “Usage Data”); provided, however, that Usage Data shall exclude Customer’s Confidential Information. Nothing herein shall be construed as prohibiting PatSnap from utilizing the Usage Data to optimize and improve the Software or the Services, or otherwise operate PatSnap’s business. Where Usage Data of Customer is combined with Usage Data of other customers, all Usage Data shall be de-identified and presented in an anonymous and aggregate format so that such Usage Data will not disclose the identity of Customer or any Users to any third party.
5.7 Jointly Owned Intellectual Property. No jointly owned intellectual property is created under or in connection with this Agreement.
6. TERM AND TERMINATION.
6.1 Term. This Agreement begins on the Effective Date and, unless earlier terminated as set forth in this Agreement, will continue while an Order Confirmation Form or SOW is in effect between the Parties. The Software or Services will be provided or made available during the Initial Subscription Term set forth in the applicable Order Confirmation Form, and will thereafter automatically renew for additional periods equal to the Initial Subscription Term, unless either Party provides the other Party with written notice of its intention not to renew at least ninety (90) days prior to expiration of the then-current term (each a “Renewal Term” and collectively, with the Initial Subscription Term, the “Subscription Term”). The expiration or termination for any reason of any individual Order Confirmation Form or SOW shall not result in a termination of this Agreement but shall result only in the termination of such Order Confirmation Form or SOW. The provisions of this Agreement relating to the effects of termination shall apply to each Order Confirmation Form and SOW as an independent contract.
6.2 Termination Rights. If either Party is in default of any material provision of this Agreement, and such default is not corrected within thirty (30) days of receipt of written notice, the other Party shall have the right to terminate this Agreement and all Order Confirmation Forms and SOWs by providing written notice to the Party in breach; such written notice shall specify in detail the alleged material breach. Either Party shall have the right to immediately terminate this Agreement in writing if the other Party: (a) voluntarily or involuntarily becomes the subject of a petition in bankruptcy or of any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors which is not dismissed within one hundred and twenty (120) days; (b) admits in writing its inability to pay its debts as they become due; or (c) any breach of Sections 3.2 or 3.4.
6.3 Effect of Termination. Upon expiration or termination of an Order Confirmation Form or SOW, or termination of this Agreement as a whole: (i) the license granted hereunder, if any, shall immediately terminate and Customer shall immediately stop using the Software; (ii) PatSnap’s obligation to provide Services will end immediately; (iii) all unpaid Fees (including any unamortized amounts attributable to any equipment purchased by PatSnap to provide the Services to Customer) shall become immediately due and payable; and (iv) each Party shall immediately return or destroy the other Party’s Confidential Information received hereunder in its possession or under its control. If an Order Confirmation Form, an SOW or this Agreement is terminated by Customer as a result of an uncured confirmed material breach by PatSnap, PatSnap may refund to Customer any pro-rata pre-paid Fees for the period after the effective date of termination in connection with such material breach. The terms of Section 1 (Definitions), 3.2 (Software Restrictions), 3.4 (Service Restrictions), 4.3 (Audit Rights), 5 (Proprietary Rights), 6.3 (Effect of Termination), 7.4 (Disclaimer of Warranties), 9 (Limitations of Liability), 10 (Confidential Information) and 11 (General) shall survive termination or expiration of this Agreement.
6.4 Suspension. In addition to any of its other rights or remedies, if Customer’s account is overdue in making payment of any Fees by more than thirty (30) days, PatSnap reserves the right to suspend the Services provided to Customer, without liability incurred by PatSnap to Customer, until such Fees are paid in full.
7. WARRANTIES; DISCLAIMERS.
7.1 Software Warranties. If Software is licensed by PatSnap to Customer under an Order Confirmation Form, PatSnap warrants for the sole benefit of Customer that, during the Subscription Term, the Software shall perform materially in respects with the functional specifications set forth in the Documentation. The foregoing warranty shall not apply to any Error or failure resulting from: (i) the use of the Software in an operating environment other than as set forth in the Documentation; (ii) Customer’s failure to follow any reasonable instructions of PatSnap; (iii) use of the Software outside the terms and conditions of this Agreement and the Order Confirmation Form and/or SOW; (iv) Customer’s negligence or accident; or (v) modification of the Software by anyone other than PatSnap. At PatSnap’s election, during the Subscription Term, if Customer notifies PatSnap in writing of such breach within ten (10) days after Customer becomes aware of such breach, then PatSnap shall, at no charge: (a) use commercially reasonable efforts to make a correction available to the Software; (b) replace the Software with materially conforming Software; or (c) after making all commercially reasonable efforts to provide the foregoing remedies, terminate the applicable license and refund the unused portion of any pre-paid Fees received by PatSnap relating to the Subscription Services. This section states PatSnap’s entire liability and Customer’s sole remedy for a breach of the warranty in this Section 7.1.
7.2 Services Warranties. If Services are purchased by Customer under an Order Confirmation Form or SOW, PatSnap warrants for the sole benefit of Customer that PatSnap will perform the Services with due care and skill and in a professional, workmanlike manner. The foregoing warranties shall not apply to any Error or failure resulting from: (i) Customer’s failure to follow any reasonable instructions of PatSnap or the Services Specifications, or (ii) Customer’s negligence or accident. At PatSnap’s election, during the Subscription Term, if Customer notifies PatSnap in writing of such breach within ten (10) days after the applicable Services have been provided, then PatSnap shall re-perform such Services at no additional cost to Customer. This section states PatSnap’s entire liability and Customer’s sole remedy for a breach of the warranty in this Section 7.2.
7.3 Professional Services. If Professional Services are purchased by Customer under an SOW, PatSnap warrants that all Professional Services will be performed in a professional and workmanlike manner consistent with generally accepted industry standards. Customer shall notify PatSnap of any breach of this warranty within ninety (90) days of the performance of the deficient Professional Services. At PatSnap’s election, if Customer notifies PatSnap in writing of breach of this Section 7.3, Customer’s sole and exclusive remedy will be for PatSnap to re-perform deficient Professional Services at no additional charge to Customer. The foregoing warranties shall not apply to any Error or failure resulting from: (i) Customer’s failure to follow any reasonable instructions of PatSnap or the Services Specifications, or (ii) Customer’s negligence or accident. This section states PatSnap’s entire liability and Customer’s sole remedy for a breach of the warranty in this Section 7.3.
7.4 Disclaimer of Warranties. EXCEPT AS SET FORTH IN THIS SECTION 7, THE SOFTWARE, SERVICES AND SERVICES DATA ARE PROVIDED HEREUNDER “AS-IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. PATSNAP EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF NON-INFRINGEMENT AND THOSE WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE. THE REMEDIES SET FORTH HEREIN ARE THE SOLE AND EXCLUSIVE REMEDIES FOR ANY CLAIMS THAT PATSNAP HAS VIOLATED ANY WARRANTY IN SECTIONS 7.1, 7.2 AND 7.3.
7.5 Acknowledgment. CUSTOMER AGREES THAT ITS LICENSE OF THE SOFTWARE AND/OR PURCHASE OF THE SERVICES HEREUNDER IS NEITHER CONTINGENT UPON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES NOR DEPENDENT UPON ANY ORAL OR WRITTEN PUBLIC COMMENTS MADE BY PATSNAP WITH RESPECT TO FUTURE FUNCTIONALITY OR FEATURES. PATSNAP MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE VERACITY OF THE UNDERLYING RESEARCH, FINDINGS, REPORTS AND OTHER SUCH INFORMATION OBTAINED BY PATSNAP FROM THIRD PARTIES AND PROVIDED TO CUSTOMER IN CONNECTION WITH THE SERVICES.
8.1 PatSnap Intellectual Property Indemnification. Subject to Section 9, PatSnap agrees to indemnify Customer against any damages finally awarded against Customer arising from a third party claim alleging that the Customer’s use of the unaltered Software infringes or misappropriates such third party’s patent or copyright in the country designated for delivery of the Software in accordance with the terms of this Agreement, provided that Customer provides prompt written notice of such claim to PatSnap, grants PatSnap the sole right to control and defend such claim, and provides to PatSnap all reasonable assistance. In the event of a claim or threatened claim under this Section by a third party, PatSnap may, at its sole option: (a) revise the Software so that it is no longer infringing; (b) obtain the right for Customer to continue using the Software; or (c) terminate this Agreement and any applicable Order Confirmation Form and/or SOW upon thirty (30) days’ notice and refund any pro-rata unused, pre-paid license fees received by PatSnap. Notwithstanding the foregoing, PatSnap shall have no liability or indemnification obligations from claims arising out of or relating to: (i) a version of the Software other than the then-current version; (ii) modification of the Software by anyone other than PatSnap; (iii) combination, operation or use of the Software with any other products or software not supplied by PatSnap; (iv) any unauthorized use of the Software, including any use of the Software outside of the applicable Subscription Term; or (v) any claim or damages arising after PatSnap’s notice to Customer that Customer should cease use of the Software in accordance with this Section.
8.2 Aggregate Liability. THIS SECTION 8 STATES THE ENTIRE LIABILITY OF PATSNAP. AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE.
9. LIMITATIONS OF LIABILITY.
9.1 Aggregate Liability. TO THE EXTENT NOT PROHIBITED BY LAW, EXCEPT FOR CUSTOMER’S LIABILITY ARISING UNDER SECTION 3 (SOFTWARE LICENSE AND RESTRICTIONS; SERVICES RESTRICTIONS), THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY, TOGETHER WITH ITS RESPECTIVE AFFILIATES, ARISING OUT OF OR RELATED TO THIS AGREEMENT AND ALL ORDER CONFIRMATION FORMS AND SOWS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICTLIABILITY) OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED IN THE AGGREGATE THE TOTAL PAYMENTS MADE BY CUSTOMER TO PATSNAP IN THE TWELVE MONTHS PRECEDING THE FIRST CLAIM MADE UNDER THIS AGREEMENT. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER.
9.2 Disclaimer of Consequential Damages. TO THE EXTENT NOT PROHIBITED BY LAW, WITH THE EXCEPTION OF CUSTOMER’S LIABILITY ARISING UNDER SECTION 3 (SOFTWARE LICENSE AND RESTRICTIONS; SERVICES RESTRICTIONS) AND CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENTS), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ANY LOST PROFITS, REVENUE, OR DATA, INTERRUPTION OF BUSINESS OR FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN.
9.3 Free Access Services. NOTWITHSTANDING THE FOREGOING, FREE ACCESS SERVICES ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY AND PATSNAP SHALL HAVE NO INDEMNIFICATION OBLIGATIONS, NOR ANY LIABILITY OF ANY TYPE WITH RESPECT TO FREE ACCESS SERVICES, UNLESS SUCH EXCLUSION OF LIABILITY IS UNENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE, PATSNAP’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO FREE ACCESS SERVICES IS $1,000. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, CUSTOMER SHALL BE FULLY LIABLE FOR ANY DAMAGES ARISING OUT OF ITS USE OF FREE ACCESS SERVICES.
10. CONFIDENTIAL INFORMATION.
10.1 Obligation. Each of PatSnap and Customer agree that, for a period of three (3) years after last receipt of the other Party’s Confidential Information, it will: (a) use the other Party’s Confidential Information only in connection with fulfilling its rights and obligations under this Agreement; and (b) hold the other Party’s Confidential Information in strict confidence and exercise due care with respect to its handling and protection, consistent with its own policies concerning protection of its own Confidential Information of like importance but in no instance with less than reasonable care, such due care including without limitation requiring its employees, professional advisors and contractors to execute non-disclosure agreements which are consistent with the terms and conditions of this Agreement and no less protective of each Party’s Intellectual Property Rights as set forth herein before allowing such parties to have access to the Confidential Information of the other Party.
10.2 Exceptions to Obligations. Notwithstanding Section 10.1 (Obligation), either Party may disclose Confidential Information to the extent required by law, provided the other Party uses commercially reasonable efforts to give the Party owning the Confidential Information sufficient notice of such required disclosure to allow the Party owning the Confidential Information reasonable opportunity to object to and to take legal action to prevent such disclosure. Notwithstanding the foregoing, a third party breach of PatSnap’s security protocols causing the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer’s data processed by PatSnap under this Agreement shall not constitute a breach by PatSnap of this Section 10.1.
11.1 Publicity. PatSnap may include Customer’s name and logo in customer lists on PatSnap’s website and in marketing collateral. Customer also agrees to: (a) serve as a reference, (b) collaborate on press releases announcing or promoting the relationship, and (c) collaborate on case studies or other marketing collateral.
11.2 Governing Law; Venue. This Agreement shall be governed by and interpreted in accordance with the laws of England and Wales without reference to their respective conflicts of law provisions. Both parties hereby irrevocably consent to the personal and exclusive jurisdiction of the courts of competent jurisdiction located in or having jurisdiction over England and Wales. The UN Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The Contracts (Rights of Third Parties) Act 1999 shall not under any circumstances apply to this Agreement and any person who is not a party to this Agreement shall have no right whatsoever under the Contracts (Rights of Third Parties) Act 1999 to enforce this Agreement or any of its terms. The substantially prevailing Party shall be entitled to recover its reasonable attorneys’ fees, costs and expenses incurred.
11.3 Assignment. Customer may not assign this Agreement, by operation of law or otherwise, in whole or in part, without PatSnap’s prior written consent (which will not be unreasonably withheld, conditioned or delayed). A transfer of more than 50% of the equity interests in Customer shall be deemed an assignment by operation of law for the purposes of this provision and such change in control shall allow PatSnap to modify the terms of this Agreement in whole or in part. Subject to the foregoing, this Agreement will be binding on, inure to the benefit of, and enforceable by and against the Parties and their respective successors and permitted assigns. PatSnap may delegate the performance of Services to third parties, but will remain liable to Customer for the delivery of those Services. Customer consents to PatSnap’s use of third-party contractors and individuals contracted through such third-party contractors to provide the Services. Any assignment not in conformity with this Section shall be null and void.
11.4 Notices. Any notices required under this Agreement shall be given in writing, shall reference this Agreement and the applicable Order Confirmation Form and/or SOW, and shall be deemed to have been delivered and given: (a) when delivered personally; (b) three (3) business days after having been sent by registered or certified mail, return receipt requested; or (c) one (1) business day after deposit with a commercial overnight courier, with written verification of receipt. All communications shall be sent to the addresses set forth on the signature page hereto, or to such other address as may be designated by a Party by giving written notice to the other Party. Notices shall be addressed to the Legal Department.
11.5 Force Majeure. Except for any payments due hereunder, if a Party’s performance hereunder is prevented, hindered or delayed by elements of nature, acts of God or war, acts or threats of terrorism, riots, civil disorders, pandemics, revolutions, strikes, labor disputes, failure of utilities or telecommunications, government action, or other causes outside of the reasonable control of the affected Party, the affected Party, upon giving prompt notice to the other Party, will be excused from performance to the extent of the condition.
11.6 Compliance with Law. The Software is subject to export control laws, including the Council Regulation No. 388/2012 of the European Parliament and Council, 19 April 2012 and its associated laws, and may be subject to export or import regulations in other countries. With respect to Software licensed to Customer hereunder, Customer agrees to comply fully with all laws and regulations of the United States, the United Kingdom, and other countries to assure that neither the Software, nor any direct products thereof are: (a) exported, directly or indirectly, in violation of such laws, either to any countries that are subject to export restrictions or to any end user who is prohibited from participating in the export transactions by any governmental authority; or (b) intended to be used for any purpose prohibited by such laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. Further, Customer agrees to comply with all applicable anti-bribery and anti-corruption laws in all business related to this Agreement, including the United State Foreign Corrupt Practices Act and the UK Bribery Act of 2010, if applicable.
11.7 Governmental Restrictions. With respect to Software licensed to Customer hereunder, Customer acknowledges that the Software consists of “commercial computer software” and “commercial computer software documentation” as such terms are defined in the U.S. Code of Federal Regulations, or such substantially similar designations that may be applicable to any other governmental jurisdictions. No government procurement regulations or contract clauses or provisions shall be deemed a part of any transaction between the Parties unless its inclusion is required by law, or mutually agreed in writing by the Parties in connection with a specific transaction. Use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the terms of this Agreement.
11.8 General. No modification or waiver of any provision of this Agreement shall be binding upon a Party unless made in writing and signed by both Parties. No modification of this Agreement or any term or condition hereof shall result due to either Party’s acknowledgment or acceptance of the other Party’s forms (e.g., purchase orders, acknowledgment forms, etc.) containing different or additional terms and conditions unless expressly and specifically accepted and executed by both Parties by means of a writing which references this Section 11.8. A waiver on one occasion shall not be construed as a waiver of any right on any future occasion. No delay or omission by a Party in exercising any of its rights hereunder shall operate as a waiver of such rights. In performing their respective duties under this Agreement, PatSnap and Customer will operate as independent contractors and neither Party is the legal representative, agent, joint venturer, or employee of the other Party for any purpose whatsoever. The headings of the Sections of this Agreement are for convenience only and shall not be of any effect in construing the meaning of the Sections. In the event that it is determined by a court of competent jurisdiction that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the Parties, while the remainder of this Agreement shall remain in full force and effect and bind the Parties according to its terms. To the extent any provision cannot be enforced in accordance with the stated intentions of the Parties, such terms and conditions shall be deemed not to be a part of this Agreement. This Agreement and the Data Processing Agreement, including all Order Confirmation Forms and SOWs, may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be delivered by electronic document format (e.g. PDF), and electronic copies of executed signature pages will be binding as originals. This Agreement, together with all Order Confirmation Forms and SOWs, constitutes the entire and exclusive agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreements and communications between the Parties with respect to such subject matter. The Parties expressly agree that any terms or conditions stated in Customer’s purchase order (“Customer’s PO”) or in any other of Customer’s order documentation (excluding PatSnap Order Confirmation Forms and SOWs) are void. In the event of any conflict, the terms of this Agreement, together with all Order Confirmation Forms and SOWs, shall prevail in all respects over the terms provided in Customer’s PO.
11.9 Non-Solicitation. Customer agrees that, during the Subscription Term and for a period of two (2) years following the termination of this Agreement, Customer will not directly or indirectly solicit, recruit, attempt to solicit or recruit, or raid the employees, consultants or contractors of PatSnap, or otherwise induce the termination of employment or services of any employee, consultant or contractor of PatSnap. For a period of 12 months from the termination of this Agreement, Customer shall not solicit PatSnap’s customers.